BVA9509401
DOCKET NO. 92-23 530 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for an
acquired psychiatric disorder.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Connolly, Associate Counsel
INTRODUCTION
The veteran had active service from January 13, 1969 to
October 12, 1970.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a May 1991, decision of the St.
Petersburg, Florida, Regional Office (RO) of the Department
of Veterans Affairs (VA). The notice of disagreement was
received in May 1991. The statement of the case was sent to
the veteran in June 1991. The substantive appeal was
received in June 1991. In a November 1993 decision, the
Board remanded this case to the RO for further development.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative essentially contend that
his preexisting psychiatric disability increased in severity
beyond its natural progression during service. The veteran
related that he was never hospitalized or placed on
psychiatric medication until service. Alternatively, they
assert that a psychosis was first manifested in service or
within one year of service. The representative asserts that
new and material evidence, specifically medical evidence, has
been presented to reopen the claim. In addition, he asserts
that the provision 38 C.F.R. § 3.306(b) (1994) was revised in
December 1992 and that revision in itself provides a basis
for the claim to be reopened.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the veteran has not met the burden of
submitting new and material evidence to warrant the reopening
of his claim for entitlement to service connection for an
acquired psychiatric disorder.
FINDINGS OF FACT
1. In a July 1971 decision, the RO denied entitlement to
service connection for anxiety neurosis manifested by somatic
complaints and depression with history of psychophysiological
complaints. The veteran was informed in a July 1971 letter
of the denial of service connection, and of his procedural
and appellate rights; however, a notice of disagreement was
not received within the subsequent one-year period.
2. The evidence submitted since the RO's July 1971 decision,
is cumulative or duplicative of evidence previously
considered by the RO in its prior 1971 decision, and does not
raise a reasonable possibility that a review of all the
evidence, both old and new, would result in a different
outcome of the claim.
CONCLUSION OF LAW
Evidence submitted since the RO's final July 1971 denial of
entitlement to service connection for anxiety neurosis
manifested by somatic complaints and depression with history
of psychophysiological complaints, is not new and material
and, thus, the veteran's claim is not reopened. 38
U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a),
3.156(a) (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In a July 1971 rating decision, entitlement to service
connection for anxiety neurosis manifested by somatic
complaints and depression with history of psychophysiological
complaints was denied. The denial was based on a finding
that the veteran's psychiatric disorder was clearly shown to
have pre-existed service and there was no evidence that there
was any aggravation beyond natural progress during the
veteran's period of active wartime service. In a July 1971
letter, the veteran was apprised of his procedural and
appellate rights; however, a notice of disagreement was not
received within the subsequent one-year period. When a claim
has been disallowed by the RO, it may not thereafter be
reopened unless new and material evidence is submitted. 38
U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.104(a)
(1994). Therefore, the July 1971 decision denying
entitlement to service connection for anxiety neurosis
manifested by somatic complaints and depression with history
of psychophysiological complaints is final and can only be
reopened if new and material evidence is submitted. New and
material evidence means evidence not previously submitted to
agency decision makers which bears directly and substantially
upon the specific matter under consideration, which is
neither cumulative nor redundant and which, by itself, or in
connection with evidence previously assembled, is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994).
According to the United States Court of Veterans Appeals, in
determining whether new and material evidence has been
submitted, it is necessary to consider all evidence added to
the record since the last final denial based on the entire
record, not merely the evidence added to the record
subsequent to the last refusal to reopen the claim. Glynn v.
Brown, 6 Vet.App. 523 (1994). Therefore, all evidence since
the July 1971 final decision must be considered.
The Court has set forth a two-step analysis in Manio v.
Derwinski, 1 Vet.App. 140 (1991), to be employed when an
appellant seeks to reopen a previously denied claim on the
basis of "new and material evidence." The two-step analysis
requires that a determination be made, under 38
U.S.C.A. § 5108 (West 1991), regarding whether the evidence
is "new and material" so as to permit the reopening of the
claim. If it is, a decision must then be made as to whether
the evidence presented warrants a revision of the former
disposition. The second level analysis must be made based
upon an evaluation of the merits of the claim in light of all
the evidence, both old and new. An adverse determination
regarding either question is appealable. Further, "new"
evidence must be more than merely cumulative of other
evidence of record, and "material" evidence must be relevant
and probative of the issue under consideration, and present a
reasonable possibility that the new evidence when viewed in
the context of all of the evidence, new and old, would change
the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991).
Therefore, in assessing the sufficiency of the additional
evidence for purposes of reopening a claim, a critical
examination of all of the evidence of record is necessary.
The evidence of record at the time of the July 1971 rating
decision included the veteran's service medical records. The
veteran had active wartime service from January 13, 1969 to
October 12, 1970. A May 1967 notation in the records
indicated that the veteran had undergone psychiatric
treatment and was still phobic. The veteran was not admitted
into military service at that time. In June 1968, the
veteran underwent a pre-induction examination. He reported a
history of depression and nervous trouble. In August 1968,
the veteran was again seen. The examiner noted that the
veteran underwent psychotherapy from January 28, 1966 to June
30, 1966 which helped decrease his phobias. The examiner
opined that the veteran could make an adequate adjustment to
military service, however, he stated that if the veteran was
under extreme stress, there was a good chance that his
symptomatology would again become severe. The examiner
recommended that he should not be placed in a combat. In
April 1969, the veteran was evaluated at the Mental Hygiene
facility per an Inspector General Inquiry. It was indicated
that the veteran's medical records including letters from his
private physician and psychiatrist were reviewed. It was
further noted that the veteran apparently had a long-standing
documented history of psychoneurosis and psychophysiological
reaction as well as an increase in anxiety which reaches
moderate to severe proportions. The examiner noted that the
veteran currently did not exhibit any signs of psychosis, but
appeared to be a highly neurotic, tense, and anxious young
man who was sincere in his apprehension regarding combatant
military training. The diagnosis was psychoneurotic reaction
with psychophysiological GI reaction , chronic, moderate.
The examiner opined that the veteran's illness required long-
term intensive psychotherapy to effect any form of cure. He
further opined that the veteran would be unable to handle the
stresses of combat. It was recommended that he be
reclassified to a non-combatant military occupational
specialty involving low stress. In June 1969, the veteran
was denied security clearance. It was noted that he had a
personality defect, neurosis. In June 1969, he was treated
for hyperventilation syndrome and was placed on Librium.
Later that month, it was noted that he suffered from mixed
neurosis. In March 1970, he was treated for
psychophysiologic gastrointestinal reaction. In August 1970,
the veteran underwent a discharge examination. At that time,
he reported that he was treated for depression in August 1969
at Womack Army Hospital and in September 1969 at St. Alban's
Hospital. He reported that he was also treated by a
physician in Brooklyn, New York, but he did not remember the
physician's name. The veteran further reported that he was
treated for psychiatric problems prior to service. He was
found to be psychiatrically normal on the August 1970
examination.
Also of record at the time of the July 1971 final rating
decision was a May 1971 VA psychiatric examination. At that
time, the veteran reported that he had considerable
psychiatric problems before service and was initially
deferred. In 1966, he suffered a breakdown and was treated
with intensive therapy. He reported that he was treated by
two private physicians, Dr. Marcus and Dr. Monaco. He
reported that he then was able to reapply and was accepted
into the military. He reported that he was also treated for
psychiatric problems during service. The VA examination
resulted in a diagnosis of anxiety neurosis manifested by
somatic complaints and depression as well as history of
psychophysiological complaints, moderate.
The veteran also presented his own contentions. He
essentially asserted that he had a preexisting psychiatric
disorder prior to service which increased in severity during
service.
The reportedly "new and material evidence" submitted by the
veteran since the July 1971 final decision consists of
duplicate service medical records, copies of the July 1971
rating decision, and the May 1971 VA psychiatric examination;
a June 1968 induction record indicating that the veteran had
colitis; administrative/personnel records indicating that the
veteran's military occupational specialty was a clerk typist;
and preservice private medical records which were with the
service medical records. The private records consisted of a
letter of Hershey Marcus, M.D. (a psychiatrist) and several
letters of Felix A. Monaco, M.D., all dated prior to service.
The Board notes at this point that these letters describe
treatment rendered to the veteran prior to military service.
The Board further notes that such treatment was referred to
in the service medical records as well as at the time of the
1971 VA psychiatric examination. The letter of Dr. Marcus,
dated in January 1967, indicated that the veteran received
intensive psychotherapy treatment twice a week between
January 28, 1966 through June 30, 1966. He exhibited extreme
anxiety and a fear of dying of leukemia and cancer (a
phobia). During treatment, his phobia decreased in
intensity, but never disappeared. The letters from Dr.
Monaco are dated in January 1966, January 1967, June 1968,
and July 1968. Dr. Monaco reported that he treated the
veteran for colitis and other gastrointestinal problems. He
noted that the veteran was referred to a psychiatrist (Dr.
Marcus) due to his deep-seated emotional problems.
Also added to the record were treatment records dated years
after discharge. There are two treatment reports of the
United Health Services dated in May and June 1989. Both
reports indicated that the veteran reported a 20 year history
of psychiatric problems and of suffering severe depression
while in the military. He further reported severe episodes
of depression after service occurring in approximately 1975
and 1987. The May 1989 report indicated that the veteran was
suffering from major affective disorder, depressed type,
recurrent, and the June 1989 report noted that that disorder
was in remission.
Also submitted was a report of the United Behavioral Center
dated in December 1989 which noted the veteran's long history
of mental difficulties. The diagnosis was bipolar disorder,
depressed. A records of St. Joseph's Hospital dated in July
1976 revealed that the veteran was treated for reactive
depression. A March 1989 report of the Tompkins Community
Hospital noted that the veteran was experiencing a depression
of 1 and 1/2 years duration. The diagnosis was depressive
disorder, not otherwise specified, rule out personality
disorder, mixed.
A November 1990 VA hospitalization report indicated that the
veteran was treated for bipolar disorder, depressed, with
psychotic features. The veteran reported that he had been
hospitalized several times during service and was diagnosed
as being schizophrenic. He related that the onset of his
psychiatric problems was in the military in 1969.
In support of his claim, the veteran presented his own
assertions at a March 1992 hearing at the RO. It was
essentially contended that his preexisting psychiatric
disability increased in severity beyond its natural
progression during service. Alternatively, it was asserted
that a psychosis was first manifested in service or within
one year of service. The veteran related that he was never
hospitalized or placed on psychiatric medication until
service. In addition, his representative has advanced
additional contentions. The representative asserted that new
and material evidence, specifically medical evidence, has
been presented to reopen the claim. In addition, he asserted
that the provision 38 C.F.R. § 3.306(b) (1994) was revised in
December 1992 and that revision in itself provides a basis
for the claim to be reopened.
As noted above, "new" evidence means more than evidence which
was not previously physically of record. To be "new,"
additional evidence must be more that merely cumulative.
Colvin. The duplicate service medical records, copies of the
July 1971 rating decision, and the May 1971 VA psychiatric
examination as well as the veteran's reiterations that his
preexisting psychiatric problems increased in severity during
service are duplicative evidence. Thus, this evidence is
cumulative and duplicative and, therefore, not new evidence.
The applicable law also requires that new and material
evidence is evidence which has not been previously submitted
to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant and which, by
itself, or in connection with evidence previously assembled,
is so significant that it must be considered in order to
fairly decide the merits of the claim. 38 C.F.R. § 3.156(a)
(1994).
The Board has reviewed the newly submitted evidence with
respect to the issue of entitlement to service connection for
an acquired psychiatric disorder, however, the Board
concludes that the aforementioned evidence is not "material"
since that evidence does not present a reasonable possibility
that the new evidence when viewed in the context of all of
the evidence, new and old, would change the outcome. The
applicable laws and regulations state that in order to be
entitled to service connection for a disease or disability,
the evidence must reflect that the claimed disease or
disability was either incurred in or aggravated by active
military service or that a psychosis was manifested to a
degree of 10 percent disabling within one year following the
appellant's release from active duty. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309
(1994). Therefore, in order to reopen the claim, the veteran
needs to present evidence that he either did not have an
acquired psychiatric disorder prior to service, that a
preexisting psychiatric disorder increased in severity beyond
its natural progression during service, or that a psychosis
(independent of the preexisting acquired psychiatric
disorder) developed during service or within one year of
discharge.
At the outset, the Board notes that the veteran and his
representative clearly are not contending that the veteran
did not have an acquired psychiatric disorder prior to
service. In fact, the representative, in April 1995
indicates that the fact that the veteran had a preexisting
psychiatric disorder is not in dispute. Also, although the
representative asserted that the veteran had a psychosis in
service or within one year of discharge, no evidence to
support that assertion has been presented. The service
medical records, considered at the time of the final 1971
decision, indicated that the veteran did not exhibit any
signs of psychosis. Likewise, the new evidence added to the
record does not indicate any diagnosis of a psychosis or
psychotic features until many years after discharge.
Although the 1990 VA hospitalization report indicated that
the veteran reported being schizophrenic during service, the
service medical records do no reflect such a diagnosis and
the reiteration of the veteran's personal report of medical
history in 1990 does not constitute a diagnosis of
schizophrenia during service. Therefore, the Board finds
that no new and material evidence had been submitted to
reopen the veteran's claim on that basis.
Therefore, the issue to be resolved is whether new and
material evidence has been submitted which establishes that
the veteran's preexisting psychiatric disorder was aggravated
during service since it increased in severity beyond its
natural progression during service. The Board observes, as
previously noted, that the July 1971 final denial was based
on a finding that the veteran's psychiatric disorder was
clearly shown to have pre-existed service and there was no
evidence that there was any aggravation beyond natural
progress during the veteran's period of active wartime
service.
Initially, the Board will address the representative's
contention that the provision 38 C.F.R. § 3.306(b) (1994) was
revised in December 1992, and that revision in itself
provides a basis for the claim to be reopened. Under 38
C.F.R. § 3.306 (b) (1994), which applies to veterans with
wartime service or peacetime service after December 31, 1946,
clear and unmistakable evidence (obvious or manifest) is
required to rebut the presumption of aggravation where the
preservice disability underwent an increase in severity
during service. This includes medical facts and principles
which may be considered to determine whether the increase is
due to the natural progress of the condition. Aggravation
may not be conceded where the disability underwent no
increase in severity during service on the basis of all the
evidence of record pertaining to the manifestations of the
disability prior to, during, and subsequent to service.
The representative asserted that the wording of that
regulation changed. The Board notes that the 38 C.F.R. §
3.306 (b) (1994) was changed in December 1992, however, the
wording of that regulation is the same as it was at the time
of the 1971 final decision. The change that occurred was
that prior to December 15, 1992, 38 C.F.R. § 3.306 (b) (1994)
only applied to veterans with wartime service. However,
effective December 15, 1992, 38 C.F.R. § 3.306 (b) (1994) was
changed to also apply to veterans with peacetime service
after December 31, 1946. In the veteran's case, he had
wartime service, therefore, the application of 38 C.F.R. §
3.306 (b) (1994) has not changed in any way in regards to his
claim. As such, the change as noted is not new and material
evidence in and of itself sufficient to reopen the veteran's
claim. Moreover, the Board notes that 38 C.F.R. § 3.306
(b)(2) (1994) was in effect at the time of the final 1971
decision. However, since the veteran did not serve in combat,
that provision was inapplicable at the time of the 1971 final
decision and still is inapplicable.
The Board will now address whether the actual "new" evidence
added to record is also material. As previously noted, in
order for that evidence to be material, it would have to show
that the veteran's preexisting psychiatric disorder increased
in severity during service beyond natural progress. The
Board finds that the new evidence does not establish that the
veteran's preexisting psychiatric disorder was aggravated
during service.
The June 1968 induction record indicating that the veteran
had colitis and the administrative/personnel records
indicating that the veteran's military occupational specialty
was a clerk typist offer no substantiation that the veteran's
preexisting psychiatric disorder increased in severity during
service beyond natural progress. The newly submitted
preservice private medical records of Drs. Monaco and Marcus
also offer no substantiation that the veteran's preexisting
psychiatric disorder increased in severity during service
beyond natural progress. Rather, they confirm that a
psychiatric disorder pre-existed service. It is apparent
that these records were reviewed by the veteran's in-service
examiners by the notations in the service medical records.
The newly received post-service medical records dated from
1976 to 1990 also do not establish that the veteran's
preexisting psychiatric disorder increased in severity during
service beyond natural progress. Those records are only
probative as to the level of severity of the veteran's
psychiatric disability following discharge. References by
the examiners to the veteran's personal history regarding his
psychiatric disability during service amount to no more than
a reiteration of the veteran's personal assertions and do not
constitute medical opinions as to whether there was any
increase in severity at all during service.
In addition, while the veteran asserts that he was never
hospitalized or placed on psychiatric medication until
service, the Board notes that he did undergo intensive
psychotherapy prior to service. Moreover, that statement
refers to information contained in the service medical
records which were reviewed at the time of the July 1971
final decision and are not new and material evidence.
Thus, while the Board acknowledges that the aforementioned
evidence is "new" in that it was not previously of record, it
is not material because there is not a reasonable possibility
that this evidence, when viewed in context with all the
evidence, both old and new, would change the outcome of this
appeal. Smith v. Derwinski, 1 Vet.App. 178 (1991).
Therefore, after reviewing the record, the Board concludes
that the evidence submitted does not constitute new and
material evidence to reopen the veteran's claim for
entitlement to service connection for an acquired psychiatric
disability. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156 (1994).
ORDER
The appeal is denied.
E. M. KRENZER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.